EXECUTION VERSION
THIRD AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF
ORMESA LLC
A DELAWARE LIMITED LIABILITY COMPANY
CONTENTS
Agreement......................................................................1
1. Organization of Company...............................................1
1.1 Name.........................................................1
1.2 Formation....................................................1
1.3 Registered Agent.............................................1
2. Definitions, Rules of Construction....................................1
3. Purpose...............................................................2
4. Principal Office......................................................2
5. The Member............................................................2
6. Term..................................................................3
7. Management of the Company.............................................3
7.1 Manager......................................................3
7.2 Authority of Manager.........................................3
7.3 Limitation on Authority of Manager...........................3
7.4 Appointment by Manager.......................................4
7.5 Execution of Company Documents...............................4
8. Resignation of Manager................................................4
9. Capital Contributions.................................................4
10. Distributions; Allocations of Income and Loss.........................4
11. Books and Records.....................................................5
12. Assignments of Company Interest.......................................5
13. Withdrawal............................................................5
14. Dissolution...........................................................5
15. Winding Up............................................................5
15.1 Responsibility for Winding Up................................5
15.2 Distribution of Assets Upon Winding Up.......................6
16. Limitation on Liability...............................................6
17. Indemnification.......................................................6
17.1 Indemnification of Manager and Member........................6
17.2 Indemnification of Directors, Officers, Employees and Agents.6
18. Reliance by Third Parties.............................................7
19. No Corporation or Partnership Intended for Nontax Purposes............7
20. Amendments............................................................7
21. Approval..............................................................7
22. Governing Law.........................................................8
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THIRD AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
This Limited Liability Company Agreement of Ormesa LLC (the "Company")
is made and entered into as of January 1, 2005 by and between the Company and
Ormat Funding Corp. a Delaware corporation (the "Member") for the purpose of
continuing a limited liability company pursuant to the provisions of the
Delaware Limited Liability Company Act (the "Delaware Act").
AGREEMENT
For and in consideration of the mutual covenants contained in this
Agreement, the Company and the Member agree as follows:
1. ORGANIZATION OF COMPANY
1.1 NAME
The name of the Company is Ormesa LLC, or such other name as the
Manager may from time to time hereafter designate.
1.2 FORMATION
The Company was formed as a limited liability company under the Act on
December 30, 1998. The Member acquired all of the interest in the Company on
April 15, 2002 and desires to continue the Company as a limited liability
company under the Act pursuant to the terms of this Amended and Restated Limited
Liability Company Agreement.
1.3 REGISTERED AGENT
The name and address of the registered agent of the Company are as
follows:
HIQ Corporate Services, Inc.
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2. DEFINITIONS, RULES OF CONSTRUCTION
In addition to terms otherwise defined herein, the following terms are
used herein as defined below:
"ACT" means the Delaware Limited Liability Company Act, and any
successor statute, as amended from time to time.
"AGREEMENT" means this Limited Liability Company Agreement as
originally executed and as amended or restated from time to time.
"MANAGER" means the Manager designated in Section 7 hereof.
"MEMBER" means the Member identified in Section 5 hereof.
"UNIT" means the limited liability company interest of the Member as
acquired by the Member pursuant to Section 9 hereof.
Words used herein, regardless of the number and gender used, shall be
deemed and construed to include any other number, singular or plural, and other
gender, masculine, feminine or neuter, as the context requires, and, as used
herein, unless the context clearly requires otherwise, the words "hereof,"
"herein," and "hereunder" and words of similar import shall refer to this
Agreement as a whole and not to any particular provisions hereof.
3. PURPOSE
The purpose of the Company shall be to engage in any lawful business
that may be engaged in by a limited liability company organized under the Act,
as such business activities may be determined by the Manager from time to time.
4. PRINCIPAL OFFICE
The principal office of the Company, and such additional offices as the
Manager may establish, shall be located at such place or places inside or
outside the State of Delaware as the Manager may designate from time to time.
5. THE MEMBER
The name and business or residence address of the sole Member of the
Company is:
Ormat Funding Corp.
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6. TERM
The Company shall continue until dissolved and terminated in accordance
with Section 15 of this Agreement.
7. MANAGEMENT OF THE COMPANY
7.1 MANAGER
The Manager is Ormat Funding Corp. The Manager shall serve until it
resigns or dissolves. The Manager shall constitute a quorum for the transaction
of business, however, any action required or permitted to be taken by the
Manager at a meeting may be taken without a meeting.
7.2 AUTHORITY OF MANAGER
The Manager shall have the sole right to manage the business of the
Company and shall have all powers and rights necessary, appropriate or advisable
to effectuate and carry out the purposes and business of the Company. Without
limiting the foregoing, the Manager shall have the authority on behalf of the
Company:
a. to approve any merger or consolidation between or among the Company
and one or more other business entities, including limited liability companies,
corporations, business trusts and partnerships (limited or general) and, in its
sole discretion, to approve the terms and conditions of any such merger or
consolidation;
b. to issue debt or any other securities, to the public or in a private
offering, determining, in its sole discretion, the terms and conditions thereof,
and to take all actions necessary or appropriate in connection with the
foregoing; and
c. to admit additional Members upon such terms and conditions, at such
time or times, and for such capital contributions as the Manager shall in its
sole discretion determine.
7.3 LIMITATION ON AUTHORITY OF MANAGER
The Manager shall not have authority to do or take any of the following
actions without approval of the Company:
(i) perform any act in contravention of this Agreement or that
would make it impossible or unreasonably burdensome to carry
on the business of the Company;
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(ii) file for bankruptcy by or on behalf of the Company.
7.4 APPOINTMENT BY MANAGER
The Manager may appoint, employ, or otherwise contract with such other
persons or entities for the transaction of the business of the Company or the
performance of services for or on behalf of the Company as it shall determine in
its sole discretion. The Manager may delegate to any such person or entity such
authority to act on behalf of the Company as the Manager may from time to time
deem appropriate in its sole discretion.
7.5 EXECUTION OF COMPANY DOCUMENTS
When the taking of such action has been authorized by the Manager, any
officer of the Company or any other person specifically authorized by the
Manager may execute any contract or other agreement or document on behalf of the
Company and may execute and file on behalf of the Company with the Secretary of
State of the State of Delaware any certificates of amendment to the Company's
certificate of formation, one or more restated certificates of formation and
certificates of merger or consolidation and, upon the dissolution and completion
of winding up of the Company, a certificate of cancellation canceling the
Company's certificate of formation.
8. RESIGNATION OF MANAGER
The Manager shall not have the right to resign as the Manager of the
Company without the approval of the Company. Upon such approval, the Company
shall designate a successor Manager.
9. CAPITAL CONTRIBUTIONS
The Member has assumed the capital account of the prior owner of the
Company. The Company has issued the Member 1,000 Units, representing its 100%
ownership interest in the Company. The Member shall make additional capital
contributions at such times and in such amounts as shall be determined by the
Manager.
10. DISTRIBUTIONS; ALLOCATIONS OF INCOME AND LOSS
Distributions of cash or other assets of the Company to the Member
shall be made at such times and in such amounts as the Manager may determine.
Distributions
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and allocations of taxable net income or net loss shall be made among the
Members in proportion to the number of Units owned by each.
11. BOOKS AND RECORDS
The Manager shall maintain records and accounts of all operations and
expenditures of the Company. With respect to capital contributions,
distributions, and allocations to the Member, the Manager shall maintain records
in a written form similar to Exhibit A.
12. ASSIGNMENTS OF COMPANY INTEREST
The Member's interest in the Company shall be transferable in whole or
in part without the consent of any other person, and the assignee shall be
admitted as a Member and admitted to all the rights of the transferring Member
upon execution of a counterpart to this Agreement and upon the books and records
of the Company being updated to reflect the transfer of the transferring
Member's Company interest to the new Member.
13. WITHDRAWAL
The Member shall not withdraw from the Company. The withdrawal of the
Member shall result in the dissolution of the Company pursuant to Section 14.
14. DISSOLUTION
Subject to the provisions of Section 15 of this Agreement, the Company
shall be dissolved and its affairs wound up and terminated upon the first to
occur of the following:
a. the determination of the Member to dissolve the Company; or
b. at such time as there is no Member.
15. WINDING UP
15.1 RESPONSIBILITY FOR WINDING UP
Upon dissolution of the Company pursuant to Section 14, the Manager may
wind up the Company's affairs; but the Court of Chancery, upon cause shown, may
wind up the Company's affairs upon application of a legal representative or
assignee of the Manager, and in connection therewith may appoint a liquidating
Trustee.
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15.2 DISTRIBUTION OF ASSETS UPON WINDING UP
Upon the winding up of the Company, the assets shall be distributed as
follows:
a. to creditors, including the Member should it be a creditor, in
satisfaction of liabilities of the Company other than liabilities for which
reasonable provision for payment has been made and liabilities for distributions
to the Member; and
b. the remainder, if any, shall go to the Members in proportion to the
number of Units owned by each.
16. LIMITATION ON LIABILITY
The debts, obligations and liabilities of the Company, whether arising
in contract, tort or otherwise, shall be solely the debts, obligations and
liabilities of the Company, and the Member and Manager of the Company shall not
be obligated personally for any such debt, obligation or liability of the
Company solely by reason of being the Member or Manager.
17. INDEMNIFICATION
17.1 INDEMNIFICATION OF MANAGER AND MEMBER
To the fullest extent not prohibited by law, the Company shall
indemnify and hold harmless the Member and Manager from and against any and all
losses, claims, demands, costs, damages, liabilities (joint and several),
expenses of any nature (including attorneys' fees and disbursements), judgments,
fines, settlements, and other amounts arising from any and all claims, demands,
actions, suits, or proceedings, civil, criminal, administrative or
investigative, in which the Member or Manager may be involved, or threatened to
be involved, as a party or otherwise, arising out of or incidental to any
business of the Company transacted or occurring while the Member was a Member or
the Manager was a Manager, as the case may be, regardless of whether the Member
or Manager continues to be a Member or the Manager of the Company at the time
any such liability or expense is paid or incurred.
17.2 INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS
Each person who was or is made a party or is threatened to be made a
party to or is otherwise involved in any action, suit or proceeding, whether
civil, criminal, administrative or investigative (hereinafter a "proceeding") by
reason of the fact that he or she is or was serving at the request of the
Company as a director, officer, employee or agent of another limited liability
company or of a corporation,
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partnership, joint venture, trust or other enterprise, including a service with
respect to an employee benefit plan (hereinafter an "indemnitee"), whether the
basis of such a proceeding is alleged action in an official capacity as a
director, officer, employee or agent or in any other capacity while serving as a
director, officer, employee or agent, shall be indemnified and held harmless by
the Company to the fullest extent authorized by the Act, as the same exists or
may hereafter be amended (but, in the case of any such amendment, only to the
extent that such amendment permits the Company to provide broader
indemnification rights than such law permitted the Company to provide prior to
such amendment), against all expense, liability and loss (including attorneys'
fees, judgments fines, excise taxes or penalties and amounts paid in settlement)
reasonably incurred or suffered by such indemnitee in connection therewith.
18. RELIANCE BY THIRD PARTIES
This Agreement is entered into among the Company and the Member for the
exclusive benefit of the Company, its Member, and their successors and assigns.
Specifically (but not by way of limitation), this Agreement is not intended for
the benefit of any creditor of the Company or any other person. Except to the
extent provided by applicable statute, and then only to that extent, no such
creditor or third party shall have any rights under this Agreement or under any
other agreement between the Company and the Member, either with respect to any
contribution to the Company or otherwise.
19. NO CORPORATION OR PARTNERSHIP INTENDED FOR NONTAX PURPOSES
The member has formed the Company under the Act, and expressly denies
any intent hereby to form a partnership under either the Delaware Uniform
Partnership Act or the Delaware Limited Partnership Act or a corporation under
the Delaware General Corporation Laws. For federal income tax purposes, the
Member intends to treat this entity as a division of Ormat Funding Corp.
20. AMENDMENTS
This Agreement may be amended only upon the written consent of Ormat
Funding Corp.
21. APPROVAL
Any required approval by the Company under this Agreement, the Act or
otherwise shall be made by obtaining the written consent of Members owning more
than 50% of the total outstanding Units of the Company.
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22. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with
the domestic laws of the State of Delaware without giving effect to any choice
of law or conflict of law provision or rule (whether of the State of Delaware or
any other jurisdiction) that would cause the application of the laws of any
jurisdiction other than the State of Delaware.
IN WITNESS WHEREOF, the undersigned have duly executed this Agreement
as of January 1, 2005.
MEMBER:
Ormat Funding Corp.
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Its President
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COMPANY:
ORMESA LLC
By Ormat Funding Corp.
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Its President
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EXHIBIT A
MEMBER CAPITAL UNITS DISTRIBUTIONS ALLOCATIONS
NAME & ADDRESS ACCOUNT OWNED DATE/AMOUNT DATE/AMOUNT
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Ormat Funding Corp. $_________ 1,000
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